Strong v. Johnson et al, 2017 WL 3537746 (S.D. Cal. Aug. 27, 2017) probably won’t go down in history as a landmark ADA decision, but shows a sometimes uncommon level of common sense about the difference between technical ADA requirements and the reality of accessibility.

By the time of this decision, the defendants had remediated all of the barriers to access that gave rise to the original lawsuit. The plaintiffs, undeterred, sent their expert back out to look for more. What he found was an excessive cross-slope “at the head” of the accessible parking space and an excessive running slope at the handicapped parking sign. Both appear to constitute violations of the 2010 ADA Standards, which require that “parking spaces” have slopes of no more than about 2% and make no distinction between the different parts of the parking space.

The Court rejected these technical violations because: “Passengers do not load, unload, or transfer into or out of vehicles at the head of a parking space, and vehicular lifts do not deploy there.” What matters for accessibility is how the slope of the space affects a disabled person, not whether there is some spot that has a slightly excessive slope. The Court had a similar observation about slopes in the middle of a parking space: “While excessive slope in the center of a parking space might technically be a violation of some kind, the fact that it is in the middle of the parking space means it would be underneath any vehicle parked there.” The court does mention the slope at the sign, but the same reasoning applies. A person in a wheelchair isn’t going to run into or even scrape a sign, so the slope at the sign is irrelevant to accessibility.

This common sense matters to defendants because one of the many games experts play in this ADA cases involves what this expert seems to have done; that is, taking measurements at many locations, trying to find just one or two that will justify a complaint. Parking spaces are large enough that it is hard to make the entire space and adjacent aisle perfectly flat, so this game often yields results. Requiring the plaintiff to show not just a technical violation, but a violation that mattered for accessibility, will often be a victory for a defendant who would otherwise end up re-paving a perfectly good parking space.

The Court also rejected the idea that the slopes might affect the plaintiff as she traversed the parking lot because as a matter of fact she never crossed the lot; she just parked and got out of her van. The slopes might be a problem for someone, but they were not for her. The Court had a similar observation about the striping on the access aisle. After noting that there did not seem to be even a technical violation the Court went on to note that: “And even if this might be a barrier for someone, Plaintiffs have never said why it would be a barrier for them.” Access aisles are required to be marked so as to discourage parking, but this only matters if the plaintiff cannot load or unload because of a parked vehicle, which evidently never happened.

For those who wonder why the Plaintiffs tried so hard to keep their lawsuit alive when the owner had fixed all the problems they identified, the answer is simple. Money. When remediation makes a lawsuit moot the plaintiff’s lawyers go home empty handed, and for most lawyers there is no more horrible result than that. Our next blog – “Mootness done right” – will discuss a case demonstrating what defendants must do if they want to take advantage of the mootness defense. In the meantime, remember that in one court, at least, common sense about the real impact of technical violations matters.

What’s wrong with this picture? You can be excused if you don’t immediately think, “no accessible parking,” but that might be the first thing that would come to mind for the defendant in Langer v. G.W. Properties, L.P., , 2016 WL 3419299, (S.D. Cal. June 21, 2016). Langer serves as a reminder that a business not usually covered by the ADA can become a “public accommodation” based on temporary use, and that this may lead to requirements for permanent changes. Commercial enterprises and apartment complexes should pay attention, as should any owner of raw land that allows it to be used for parking from time to time.

Richard M. Hunt

Hunt Huey PLLC defends businesses in ADA and FHA accessibility lawsuits as well as advising businesses on how to avoid such lawsuits. For more information about our firm visit the Hunt Huey PLLC web site, hunthuey.com